WASHINGTON, Jan. 16 — In his final appearance representing the government
before the Supreme Court, Solicitor General Seth P. Waxman today urged the
justices not to repudiate more than 25 years of legal precedents that have
permitted individuals to sue states to prevent violations of federal civil
rights regulations.

The Clinton administration was aligned against Alabama in a complex case with
significant implications for both federalism and civil rights enforcement.

The case began four years ago as a dispute over Alabama's newly enacted
requirement that people applying for driver's licenses demonstrate
proficiency in English, the only such requirement in the country. A federal
appeals court's ruling last year that the language requirement violated
federal antidiscrimination regulations turned the case into a rallying point
for the English-only movement.

But there was no mention in the courtroom today of the English-only issue or,
indeed, any of the facts of the class-action lawsuit, brought against the
state on behalf of immigrants who could not demonstrate English proficiency
at the required 10th-grade level. The focus of the justices' interest today
was entirely on the legal questions raised by the case and on the
implications of accepting Alabama's argument that the lower courts should
never have permitted the lawsuit to proceed in the first place.

There are several interrelated issues in the case, Alexander v. Sandoval, No.
99-1908.

The first is whether the lower federal courts have correctly ruled, in cases
going back to the 1960's, that individuals may sue states under Title VI of
the Civil Rights Act of 1964, a law that prohibits recipients of federal
grants from discriminating on the basis of race or national origin.

A second issue is whether, even if private suits are generally permissible
under Title VI, they can be brought for violations of regulations that
federal agencies have issued to implement the law and that go beyond the
statute itself.

A further issue lying under the surface of the case is whether agencies can
issue regulations that carry federal enforcement authority further than
Congress has explicitly authorized; in the case of Title VI, the statute
itself prohibits only intentional discrimination, while regulations to
implement it issued by the Departments of Justice and Transportation also bar
actions that have a discriminatory effect, without requiring proof of intent.

Not so many years ago, the answer from the Supreme Court to all these
questions would indisputably have been yes. But today, each issue resonates
with a different aspect of the court's renewed debate over states' rights and
Congressional authority, and the outcome is far from certain.

Jeffrey S. Sutton, arguing Alabama's appeal, told the justices today that in
ruling against the state, the United States Court of Appeals for the 11th
Circuit had ignored the fact that "states are not run-of-the- mill civil
defendants" but rather are "co-equal sovereigns."

Mr. Sutton, formerly Ohio's solicitor general, is now in private practice and
is also representing Alabama in a major federalism case under the Americans
With Disabilities Act. That case was argued before the court in October and
is awaiting decision.

The first prong of Mr. Sutton's argument today was that in enacting Title VI,
Congress never explicitly granted a "private right of action" to individuals
to sue states or anyone else. The law was passed under Congress's spending
power, and the sanction it provides is the cutoff of federal money to a
program that is misusing its federal grant to support discriminatory policies.

"When you alter the federal-state balance, Congress has to be unmistakable
about what it's doing," Mr. Sutton said.

The second prong of Mr. Sutton's argument was that even if there is an
implied right to sue under Title VI, that right does not extend as far as
regulations that prohibit more than intentional discrimination.

In challenging this argument, Solicitor General Waxman told the justices that
it ran counter to the court's "completely unbroken practice of enforcing
obligations equally whether they arise under statutes or regulations."

Mr. Waxman said that to accept Alabama's position would be to "drive a wedge
right through the heart of this court's cases that hold that substantive
regulations mandated by statute have the force of law." Section 602 of Title
VI requires "each federal department and agency" affected by the law to issue
regulations "which shall be consistent with achievement of the objectives of
the statute."

A separate federal law generally known as Title IX, which bars sex
discrimination in education programs that receive federal money, was based on
Title VI and would also be affected by the court's ruling in this case.

Mr. Waxman told the court that the case had "very, very broad ramifications"
beyond the civil rights laws for enforcing "regulatory obligations against
the states," for example, under the federal Medicare statute and regulations.

The case has drawn many friend- of-the-court briefs that alert the court to
implications for current lawsuits over land use, school financing and
academic standards for college athletes.

The lead plaintiff in the case, Martha Sandoval, represented at the court
today by Eric Schnapper, is a permanent resident who came to the United
States from Mexico in 1987. She knows enough English to read road signs but
does not read English at the high school level required to pass Alabama's
test.

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